Thursday, October 11, 2012

Previously, the Sixth Circuit has struck down a supervised release condition which prohibits the possession of material which “alludes to sexual activity.” Such a condition fails what could be called “the Bible test.” That is to say, the condition is so overbroad, it would prevent the defendant from owning a copy of the Bible, and it therefore violates the First Amendment. Today, in United States v. Zobel, the Sixth Circuit extended its previous holding and struck down a supervised release condition which banned “sexually suggestive” material for the same reasons: it was overbroad because it violated the Bible test.

Zobel also contained a dissent which would have held that no amount of general discussion of the 3553 factors is sufficient to justify an upward variance. Instead, the dissent believes that the district court must specifically and explicitly state the reasons for the variance. So if your client receives an upward variance and the transcript does not contain the sentence “I am varying upward because of X, Y, and Z,” a procedural reasonableness appeal may be an option.